William & Mary Bill of Rights Journal Volume 11 (2002-2003) Issue 1 Article 4 December 2002 Re-evaluating Large Multiple-Defendant Criminal Prosecutions Paul Marcus William & Mary Law School, [email protected] Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Criminal Procedure Commons Repository Citation Paul Marcus, Re-evaluating Large Multiple-Defendant Criminal Prosecutions, 11 Wm. & Mary Bill Rts. J. 67 (2002), https://scholarship.law.wm.edu/wmborj/vol11/iss1/4 Copyright c 2002 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj RE-EVALUATING LARGE MULTIPLE-DEFENDANT CRIMINAL PROSECUTIONS Paul Marcus* I. INTRODUCTION Americans have decided to get tough on crime.' This decision applies not simply to violent crime, but to white-collar crime as well. In particular, we have seen substantial prosecutorial resources directed against a wide range of criminal endeavors conducted by groups of defendants, especially in the area of white-collar prosecutions.2 In support of this movement, one finds the large multiple-defendant criminal trial becoming widespread3 and commonplace.' Yet, as the practice has * Haynes Professor of Law, College of William and Mary. I appreciate the thoughtful and helpful comments received during presentations to law faculty workshops at Rutgers University-Newark, the University of Illinois, Valparaiso University and the College of William and Mary. The Article also greatlybenefitted from discussions with Beryl Blaustone, Sandy Guerra, Ed Imwinkelried, Tony Pagone, and John Tucker. Much of the drafting of this Article took place during a research leave spent in Australia. I extend my deep appreciation to the College of William and Mary for granting the leave and to the University of Melbourne, Centre for Comparative Constitutional Law for extending warm hospitality. On this point, surely there can be little disagreement. For evidence of this attitude, see infra note 11 and text accompanying notes 11-21. 2 William J.Stuntz, Race, Class, and Drugs, 98 COLUM. L. REV. 1795, 1839 (1998). 3 Several times in the past, I have explored questions involving multiple-defendant trials and the law of criminal conspiracy. I have twice before considered such issues from an empirical view looking to the manner in which such prosecutions are brought forward and the difficulties - real or potential - which are created. See Paul Marcus, Conspiracy: The Criminal Agreement in Theory and in Practice, 65 GEo. L.J. 925 (1977); Paul Marcus, Criminal Conspiracy Law: Time to Turn Back From an Ever Expanding, Ever More TroublingArea, I WM. & MARY BILL RTs. J. 1 (1992). Here, however, the focus is less on broadly identifying such difficulties and more on attempting to craft solutions to two acute problems. See discussion infra Part III. ' Not all agree. Note the comments ofthen-Assistant United States Attorney (later F.B.I. Director) Louis Freeh at the Annual Judicial Conference of the Second Judicial Circuit of the United States. Annual Judicial Conference of the Second Judicial Circuit of the United States, PanelPresentation: The Problemsin the Trialof "Monster"RICO Cases, 125 F.R.D. 197, 234, 236-42 (1988) [hereinafter "Monster" RICO Cases] (remarks of Louis Freeh, Assistant United States Attorney). But see the remarks ofthe Honorable J.Joseph Smith forty years ago identifying the problem of "long, involved criminal trials."Judicial Conference of the Second Judicial Circuit of the United States, The Problems ofLong Criminal Trials:A Panel Discussion, 34 F.R.D. 155, 157-58 (1963) [hereinafter Long Criminal Trials] (remarks of Judge J. Joseph Smith); see also Fed. Bar Council Comm. on Second Circuit Courts, A ProposalConcerning Problems Createdby Extremely Long Criminal Trials, 128 © 2002 PaulMarcus WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 11:67 become more entrenched at both the local and national levels, criticism of such an approach has been muted. For instance, questions about the necessity for - and wisdom of - the wide use of the conspiracy charge5 have all but disappeared, 6 replaced with a heavy reliance on the perceived dangers of group criminal activity. Additionally, one almost never hears today the earlier cries against the RICO offense which claimed that the statute is too broad in application and too vague in definition.7 RICO has become an accepted part of the law enforcement arsenal in the battle against group crime.' In practice, these issues have become settled. Nevertheless, the conclusion of F.R.D. 137, 138 (1989) [hereinafter Fed. Bar Council Comm.] (writing of "the current prevalence of mega-trials"). See generally Edward J. lmwinkelried, Prejudice to the Nth Degree. The Introduction of Uncharged Misconduct Admissible Only Against a Co- defendant at a Megatrial, 53 OKLA. L. REV. 35 (2000) (discussing the phenomenon and complexity of large multiple-defendant joint trials). 5 See Phillip E. Johnson, The Unnecessary Crime ofConspiracy, 61 CAL. L. REV. 1137, 1138-41 (1973). 6 See generally United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991) (suggesting that group action generally is more dangerous than individual activity); United States v. Stevens, 909 F.2d 431, 433 (11 th Cir. 1990) (noting that an agreement between persons poses a higher societal threat than individual action). As stated in Callananv. United States, 364 U.S. 587 (1961): [C]ollective criminal agreement - partnership in crime - presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission ofcrimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise. Id. at 593-94. The Supreme Court has never retreated from this position. Some trial judges even instruct on the point. See United States v. Lopez, 937 F.2d 716, 725 (2d Cir. 1991). However, this view of group danger has been strongly challenged. See Professor Abraham S. Goldstein, Conspiracy to Defraud the UnitedStates, 68 YALE L.J. 405, 414 (1959). 7 See, e.g., Barry Tarlow, RICO: The New Darling of the Prosecutor'sNursery, 49 FORDHAM L. REV. 165, 169-70 (1980). 8 For discussion of RICO impact, see Craig M. Bradley, Racketeers, Congress,and the Courts:An Analysis ofRICO, 65 IOWA L. REV. 837, 837-38, 845 (1980); Symposium, Law and the ContinuingEnterprise: Perspectives on RICO, 65 NOTRE DAME L. REV. 873 (1990); Gerard E. Lynch, RICO: The Crime ofBeing a Criminal (pts. 1-2), 87 COLUM. L. REV.661, 920 (1987); Symposium, Reforming RICO: If Why, and How?, 43 VAND. L. REV. 621 (1990); Barry Tarlow, RICO Revisited, 17 GA. L. REV. 291 (1983); Symposium, 20th Anniversary of the Racketeer Influenced and CorruptOrganizations Act (1970-1980), 64 ST. JoHN's L. REV. 701 (1990). 2002] MULTIPLE-DEFENDANT CRIMINAL PROSECUTIONS that portion of the debate is hardly the end of the discussion as to issues concerning the process of multiple-defendant cases.9 Increasingly, questions are being raised as to the procedures used in connection with such prosecutions. It may now be beyond dispute that we are willing to give law enforcement officials great weapons in the investigation and prosecution of group criminal behavior. It is not at all clear, however, that the manner in which we prosecute such defendants is above debate and critique. 0 After all, while Americans apparently have chosen to punish with severity those convicted of group crime, that does not mean that - consistent with constitutional mandates - those chargedwith such crimes can be processed with anything less than the full complement of procedural and constitutional guarantees. In this Article, Iwill look to the way those charged with crimes involving group criminal behavior are prosecuted. Concerns will be raised in two key areas: (1) Have we extended too much power to state and federal prosecutors in determining where to bring such individuals to trial?; and (2) Should the courts scrutinize far more carefully the joining together of these defendants for trial? 9 The most remarkable aspect of the multiple-defendant process is, surely, the somewhat bizarre "slight evidence" rule. Some courts (the Eighth Circuit is the leader) write that "[o]nce a conspiracy has been established, only slight evidence is needed to link a defendant to the conspiracy." United States v. Davidson, 195 F.3d 402, 406 (8th Cir. 1999) (quoting United States v. Pena, 67 F.3d 153, 155 (8th Cir. 1995)). See generally United States v. Causor-Serrato, 234 F.3d 384, 388 (8th Cir. 2000) (requiring only slight evidence to link defendant to conspiracy), cert. denied, 532 U.S. 1072 (2001); United States v. Jolivet, 224 F.3d 902,909 (8th Cir. 2000) (holding defendant's knowledge was enough evidence to link him to conspiracy). While such statements have a certain ring of authenticity to them, they are, alas, quite incorrect and assuredly unconstitutional. To convict an individual of conspiracy, the evidence must establish beyond a reasonabledoubt that person's intent to pursue crime and her knowing membership in the criminal group. Nothing less will suffice, as even the Eighth Circuit recognizes. See United States v. Jiminez-Perez, 238 F.3d 970, 973 (8th Cir. 2001) (holding that slight evidence must still meet reasonable doubt standard). Most courts today resist the lure of the "slight evidence" rule and have "banished" the concept.